JUDGMENT 1. All these five appeals are disposed of by this common judgment as they arise out of one judgment delivered by Addl. Sessions Judge, Dholpur on July 11, 1986; whereby the learned Judge convicted and sentenced the accused-appellants as under : Accused-appellants Sunder Singh Suresh Ramesh Santoshi and Foran Singh U/s. 395 IPC Rigorous imprisonment for 4 years each. 2. The facts giving rise to these appeals are that a report Ex. P. 21 /22 was lodged by one Bhagwan Dass PW. 12 at police station Kotwali, Dholpurlon August 11, 1984 at 1.15 a. m. wherein it was alleged by him that he was driver On Bus No. RNE 9757 which was coming from Jaipur and going to Dholpur. This bus left Agra on 10.8.1984 at 11.20 p. m. and it had 30-35 passengers on board and about 10.15 hours the bus reached about the curve of Tod, then one person out of the passengers armed with a Katta (Pistol) came to him and placed its nozzle on his neck and directed to stop the vehicle. He out of fear stopped the vehicle. The miscreant asked him as to what was valuables with him. He took out Rs. 125.00 from back pocket of his pant and he was compelled to get down of the bus. The miscreant who was standing on the road forced him to take out his RIICO watch. The miscreants also took away Rs. 1845.00 which amount was given to him by the conductor for keeping safe. The miscreants fired on the bus and started looting the passengers in the bus & then ran away towards fields with the looted property. It is the passengers who can furnish the list of the looted property. It was alleged that the miscreants were six in number. On receipt of this report a case for offence under Sections 395/397 IPC was registered and investigation commenced. During the course of investigation the accused Sunder Singh, Ramesh, Santoshi and Foran Singh were taken into custody in this case while they had been arrested in some other cases. Sunder Singh was arrested in this case on 17.10.84 vide arrest memo Ex, P. 27 while was in judicial custody in another case since 4.9.1984. His identification parade was held on October 20, 1984 vide memo Ex. P. 1. Ramesh was also in judicial custody since 4.9.1984. Sunder Singh was arrested in this case on 17.10.84 vide arrest memo Ex, P. 27 while was in judicial custody in another case since 4.9.1984. His identification parade was held on October 20, 1984 vide memo Ex. P. 1. Ramesh was also in judicial custody since 4.9.1984. He too was arrested on 17.1 .84 vide Ex. P. 31 and his identification parade was held on 20.10.84. Santoshi again was in judicial custody from 4.9.1984. He was arrested vide memo Ex. P. 33 on 17-10-84. Foran Singh was in judicial custody w, e, f. 8.10.84. He was arrested on 19.10.84 vide memo Ex. P 37 and his identification parade took place on 20.10.84. Suresh was arrested on 20.9 .84 vide memo Ex. P. 29 and his identification parade was conducted on 29.9.84. Dr. Rajendra Mohan PW. 1 identified Sunder Singh Suresh and Santoshi in identification prade. Suresh PW. 4 identified Sunder Singh, Suresh, Ramesh and Foran Singh. Ramnath PW. 5 identified Suresh and Foran Singh, while Rakesh PW. 2 identified Ramesh. Santoshi and Foran Singh. So far as the recoveries were concerned, three watches were recovered from Suresh on 20.9.84 vide mc'no Ex. P. 15. An identification was got conducted for these watches on 1.12.84 vide memo Ex. P. 5. One watch was recovered on 26.10.84 vide memo Ex. P. 19 from Santoshi and its identification was also held on 1.12.84. After collecting this evidence inter alia alongwith two other persons, namely, Jai Prakash and Ram Prakash (since acquitted) the investigating officer submitted chargesheet in the court of Chief Judicial Magistrate, Dholpur who committed the accused to Sessions for trial. At trial the prosecution examined 19 witness in support of its case. The accused denied the entire prosecution case and the learned Judge after hearing arguments acquitted Jai Prakash and Ram Prakash and convicted and sentenced rest of the accused persons as indicated above. 3. All the five accused-appellants filed separate appeals. Two of them, namely, Ramesh and Suresh filed appeals from jail in which amicus curiaes were appointed and this is how that all the five appeals have come up for hearing which are disposed of by this common judgment. 4. Learned counsel for the appellants contend that the entire evidence in the case is that of identification which does not inspire confidence as the accused had been shown to the witnesses from before. 4. Learned counsel for the appellants contend that the entire evidence in the case is that of identification which does not inspire confidence as the accused had been shown to the witnesses from before. It is also submitted that there is no recovery from three of the accused persons and about recovery from the two it is fake. The contention is that the persons were travelling in the bus where, according to some of the witnesses, there was light in which they were identified. But the driver of the bus P.W. 12 Bhagwan Dass has categorically stated that there was complete dark in the bus and he could not have identified anybody. He has denied that the light in the bus was on at the time of incident. Thus the foundation of identification is shaky. 5. Learned Public Prosecutor has supported the judgment of the trial court and submitted that there is no warrant for interference in the case. 6. I have heard learned counsel for the parties and have perused the entire record. 7. P.W. 1 Dr. Rajendra Mohan was travelling in the bus and he has given the detailed version as to how the miscreants stopped the bus and looted the passengers. He has stated that he had identified the miscreants as they looted the bus for about 8 to 10 minutes inside the bus where the inner light of the bus was on. He reiterates that only light in the bus was the light inside the Bus. He was confronted with his police statement wherein he had not stated of this light and he stated that the police might have not have written the same. This witness had also identified Jai Prakash but he has not been believed for accused Jai Prakash by the trial court. PW'. 2 Rakesh Sharma was another passenger in the bus. He states that his HMT Was forcibly snatched. This witness could not identify any of the accused in the court. He had identified Ramesh, Santoshi and Foran Singh in identification parade, but he did not identify them in court and he was declared hostile. His evidence about the identification of watch is very shaky. Ramnath PW. 3 was yet another passenger who stated that he had identified the accused in the light which was on in the bus and one of the persons had broken hand. His evidence about the identification of watch is very shaky. Ramnath PW. 3 was yet another passenger who stated that he had identified the accused in the light which was on in the bus and one of the persons had broken hand. He stated that he had identified three persons, namely, Sunder Singh Foran and and Ramesh.He then identified only two when was asked to identify in the court, he identified only two namely, Foran Singh and Ramesh. He has stated that he had not told the police earlier the description of Foran Singh. He admitted that he goes to the court of law everyday. However, he denied that he had seen the accused .when the accused were taken in court for remand. He has stated that since he is correspondent of L.N.1. he often goes to the police. He also has admitted that one of the hands of a miscreant appeared to be broken On court question this witness stated that he went to jail twice and in which visit he visited which particular accused he does not know. P.W. 4 Suresh was also travelling in the same bus. He has stated that there were six miscreants two of them had fire arms and two of them cycle chains. He has stated that all the six miscreants were sitting in the bus. This witness had identified Ram Prakash who has since been acquitted. This witness in the court identified all except Santoshi. PW 6 Mata Prasad could not indetify anyone and he was declared hostile. PW. 7 Mohan Lal Srivastava also did not identify any of the accused. According to him one of the accused who had come near to him was with muffled face. PW. 8 Maheshdatt has also been declared hostile. PW 9 Hajarilal Dhanwal is the Munsiff Magistrate who got the identification parade conducted. He proved various exhibits which I have mentioned above. He has admitted in the cross examination that he had not asked any of the witnessess about the description of the accused they had come to identify or about the role. He stated that the witnesses had also not told him as they had come to identify which of the person. This witness has been cross examined at great length and there is no infirmity in his statement. Sunharilal PW. 10 and Sanno PW. 11 are both hostile witnesses. Bhagwandas PW. He stated that the witnesses had also not told him as they had come to identify which of the person. This witness has been cross examined at great length and there is no infirmity in his statement. Sunharilal PW. 10 and Sanno PW. 11 are both hostile witnesses. Bhagwandas PW. 12 is the driver of Rajasthan Roadways who was driving the bus RJF 9757. He took this bus from Jaipur from where it started at 4.30 p.m. At 11.00 or 11.30 it started from Agra and at that time there were 30 to 40 passengers. After Maniya some passengers told him to stop the bus but conductor refused and the bus did not stop. Near the curve of Tod somebody came behind him and touched and objected with his neck and commanded him to stop the bus. At that time there was no light in the bus and he could not see as to what was the object which had been pointed at his neck. But understanding it to be a gun he stopped the bus. After stopping the bus that man asked him to stand-up and asked to give whatever it possessed. His money was taken thereafter he was asked to get down from the bus. He stated that the money which the conductor had given to him and the papers were also taken by the miscreants. There were 3 fires done by these miscreants, they looted the passengers and ran away. This witness on the cross examination has stated that the man who had pointed the gun on his neck was with muffled face. He also stated that there was no light inside the bus and it was totally dark. He has further stated that he had not put on the light even when he was asked to get down from the bus. PW. 13 Ramesh Chandra was the Station House Officer, police station Kotwali, Dholpur on the date of occurrence. He stated that the investigation of this case was handed over to him by Circle Officer Shri Hariram. This witness is testified to the recoveries from the residence of Ram Prakash, Sunder Singh, Ramesh, Santoshi and Foran Singh. He stated that he kept the accused baparda after arrest. He stated that the investigation of this case was handed over to him by Circle Officer Shri Hariram. This witness is testified to the recoveries from the residence of Ram Prakash, Sunder Singh, Ramesh, Santoshi and Foran Singh. He stated that he kept the accused baparda after arrest. This witness stated that he first learnt about the involvement of Ram Prakash in the dacoity and it is thereafter that the names of other persons were made known to him. This witness has admitted that he had taken all the accused in custody from jail where they were in other cases. He however, does not know what were the cases and what was the date when since they were inside. Rest of the evidence is not very material for the disposal of this case. The above evidence discloses that against Sunder Singh there is no evidence of recovery and there is evidence of two witnesses. namely, Rajendra Mohan PW. 1 and Suresh PW. 4 regarding identification. They have identified these persons both in the identification parade as well as in the court. Against Suresh also there is evidence of these two witnesses about the identification and also recovery of three watches. Ramesh had been identified by Rakesh and Suresh in identification parade but Rakesh could not identify him in court and Ramnath had identified who had not identified in identification parade. Santoshi accused could not be identified by any of the witness and Foran Singh had been identified by two. The evidence of the recovery of goods is as stated above, against Suresh and also Santoshi. Thus, there is no accused who could be identified by more than two witnesses and one of them is Suresh who claims to have identified four of the accused. Suresh has given a very vague statement in the Court about the role played by the accused persons . He has given an omnibus statement and from his statement it appears that he had been taking a chance for identifying the accused. Besides this four of the five accused persons were in judicial custody since Tong and the investigating officer has not given out the dates and the cases in which they had been detained. He has given an omnibus statement and from his statement it appears that he had been taking a chance for identifying the accused. Besides this four of the five accused persons were in judicial custody since Tong and the investigating officer has not given out the dates and the cases in which they had been detained. He however, states that he had taken the custody from those cases, Identification parades had been held on 29-9-84 about Suresh and on 20-10-84 against Sunder Singh, Ramesh, Santoshi and Foran Singh when prior to that they used to attend the court in other cases. Jai Prakash and Ram Prakash have been acquitted by the learned Judge on the same evidence. In this case there were three lacunae in identification parade. Firstly the roles played by the accused have not been told, secondly it has not been shown by the witnesses as to whom they had come to identify and lastly there is discrepency in the statements of the witnesses about some of the accused being muffled faces. Above all it is also worthy to note that driver has categorically stated that he had not put on any light in the bus even when he had got down and that there was total dark. In this situation it is very difficult to hold with all certainty that there was sufficient light in which the witnesses could have identined the accused persons. The identification in the case, therefore, does not inspire confidence. Regarding the recovery there is evidence as well as the identification but this evidence connects only two accused Santoshi and Suresh for which at best they can be convicted for offence under S. 411 IPC as there is no evidence that they had the knowledge that the goods recovered are that of the dacoity. 8. The result of the aforesaid discussion is that the accused-appellants Sunder Singh, Ramesh and Foran Singh are entitled to the benefit of doubt. The same is extended to them. The judgment of the trial court qua them is set aside and they are acquitted of the charge. They shall be released forthwith if not required in any other case. So far as accused-appellants Suresh and Santoshi are concerned, their appeals are partly allowed. They are acquitted of the offence under S. 395 IPC but instead they are convicted for offence under S. 411 IPC. They shall be released forthwith if not required in any other case. So far as accused-appellants Suresh and Santoshi are concerned, their appeals are partly allowed. They are acquitted of the offence under S. 395 IPC but instead they are convicted for offence under S. 411 IPC. They are in jail for more than two years and the sentence already undergone by them shall meet the ends of justice. They shall be released forthwith if not required in any other case.Appeals Nos 332, 359 & 383 Allowed. Appeals Nos. 304 & 405 Partly Allowed. *******